"And if I laugh at any mortal thing,
'Tis that I may not weep."
--Lord Byron

Saturday, July 10, 2010

A brief look at three recent stories...

OK, so I lied. I truly intended to write about the nexus of theatre and social work, as I said on the Curmudgeon Central Facebook page. (And I will, soon.) But then three different stories worthy of comment all broke within a few hours. The timing of one, the announcement of where LeBron James will play next year, was planned. The other two—Federal Judge Joseph L. Tauro’s pair of decisions regarding the Defense of Marriage Act (DOMA), and the verdict in the Johannes Mehserle trial—simply happened when they happened. So here are three slightly shorter than normal commentaries which add up to one slightly longer than normal essay.

DOMA
Let’s start with what might turn into one of the most significant civil liberties stories in some time. Federal Judge Joseph L. Tauro’s decisions in two cases regarding the Defense of Marriage Act (DOMA) certainly give some hope for those seeking marriage equality, despite the almost inevitable appeal (and probable victory) by the Obama administration, which is in the difficult position of being duty-bound to fight to uphold a statute they don’t believe in. Tauro’s ruling in the case brought by Massachusetts Attorney General Martha Coakley has no immediate or direct effect on states which forbid same-sex marriage, but rather it suggests that in states in which gay marriage is permitted, all marriage benefits, including those under the auspices of the federal government, must be afforded to any couple which meets that state’s legal requirements for marriage. What would happen to a couple legally married in one state and subsequently denied benefits in a state in which same-sex marriage is not permissible remains unclear, at least to me.

Tauro’s citation of the 10th Amendment, which the right wing so often invokes as a rationale to oppose, say, a federal health care system, to argue that Massachusetts rather than Congress has the right to define marriage within the commonwealth, makes for a delicious irony. But it’s not yet clear that this isn’t a double-edged sword: it would, for example, re-affirm the constitutionality of other states’ bans on same-sex marriage. Law professor/blogger Steven L. Taylor makes this point, predicting that appeals to the full faith and credit (Article 4) and equal protection clauses (14th Amendment) have better long-term prospects.

The more important and potentially precedent-setting decision came in the other case, one filed by Gay & Lesbian Advocates & Defenders, a New England–based advocacy organization. Here, equal protection guarantees, rather than states’ rights, was at the center of the opinion. The states’ rights argument is still there—“the passage of DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage—or any other core concept of domestic relations, for that matter” and “the federal government nonetheless recognizes any heterosexual marriage, which a couple has validly entered pursuant to the laws of the state that issued the license”—but the decision is grounded firmly in more ethical than purely legalistic terms.

Here’s the meat of Tauro’s rationale: “Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.” And then we get the big guns: “where, as here, ‘there is no reason to believe that the disadvantaged class is different, in relevant respects’ from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.” (emphasis in original) I find it interesting that Tauro cites the implicit guarantee of equal protection in the 5th Amendment rather than the explicit statement in the 14th. His point is valid either way, of course.

I imagine there are those who are already frothing at the mouth that their irrational prejudice is described as irrational prejudice, but the appeal to equal protection—to fundamental fairness, in other words—would seem to have at least some hope of long-term resonance. Nonetheless, I confess I’m tempted to agree with blogger and law professor Jack M. Balkin, who knows a lot more about these things than I do: “Whether one likes it or not—and I do not—Judge Tauro is way ahead of the national consensus on the the equal protection issue. I personally think that discrimination against gays and lesbians is irrational, but a federal district court judge—who must obey existing precedents, and who is overseen by a federal judiciary and a Supreme Court constituted as they currently are—is in a very different position than I am.”

About the 10th amendment argument, Balkin writes: “To be sure, there is something delightfully playful and perverse about the two opinions when you read them. Judge Tauro uses the Tenth Amendment—much beloved by conservatives— to strike down another law much beloved by conservatives—DOMA. There is a kind of clever, ‘gotcha’ element to this logic. It is as if he’s saying: ‘You want the Tenth Amendment? I'll give you the Tenth Amendment!’ But in the long run, this sort of argument, clever as it is, is not going to work.” Balkin concludes: “I believe that the civil rights of gays and lesbians will someday be vindicated by legislatures and courts. But not in this way.” The good news and the bad news is that he’s probably correct.

Ultimately, getting it right is important. Grounding a legal argument in legitimate constitutional terms not only makes for better law, it also pre-empts ring-wing arguments about judicial activism. They’ll still ululate, of course; it would be nice if they didn’t have a point. But there’s also a pragmatic issue. Rights are being denied right now, and there’s part of me that wants to leave the niceties until later and get the policy right absolutely as soon as possible. Ultimately, though, I’d prefer that the courts do what they’re supposed to do: rule purely on the basis of constitutional authority. Of course, I can say that in part because my own marriage and the benefits thereunto appertaining are not being threatened by “irrational prejudice.”

Johannes Mehserle and Oscar Grant
The other really significant story that broke Thursday afternoon was the verdict in the murder trial of former Bay Area Rapid Transit (BART) officer Johannes Mehserle. Mehserle was filmed (by several different people from various angles) on January 1, 2009, firing a fatal shot into Oscar Grant III, who was face-down on the ground with another cop’s knee on his neck at the time. The scenario has a grim familiarity: white cop kills young black male, concocts a totally implausible defense, and is pretty much exonerated by an all-white jury in a totally different jurisdiction. True, he was convicted—the MSNBC headline reads “Mehserle Verdict: Guilty.” That’s technically true, of course, but guilty of what? The jury rejected 2nd-degree murder and voluntary manslaughter charges, settling instead on involuntary manslaughter. In other words, “Oops.”

And we wonder why so many members of minority populations (black, gay, Hispanic…)—hell, people in general—don’t trust the police. The reason is that some idiot cop shot an unarmed man in front of dozens of witnesses and several cameras and, despite the overwhelming, obvious, video evidence and eye-witness testimony that there was nothing whatsoever involuntary about his action, essentially got away with it. (He can petition for probation alone as his punishment.) If you’ve met a dozen cops in your lifetime, the odds are overwhelming that you’ve met one who went into police work not to serve the community but to strut around with a sidearm and act important.

It would be silly to say that all (or even most) cops are racist, testosterone-overdosed jackasses. It would be equally silly to deny that some are. Be it noted: the truly bad cop here may well be Tony Pirone, described by Julianne Hing of colorlines.com as “the true villain of the night.” It may well be that Mehserle just panicked (which doesn’t mean he shouldn’t have been convicted of voluntary manslaughter, at least), whereas Pirone is the sort of arrogant prick who likes to prance around threatening people, swearing at them, and generally giving everyone else in uniform a bad name. It was Pirone’s swaggering and violence that appear to have escalated what could otherwise have been a controlled situation. Will Pirone face as much as a reprimand? Are you kidding?

That said, it was Mehserle who pulled the trigger, and his story that he didn’t really mean to shoot Grant, that he thought he was reaching for his Taser, is, well, laughable—or it would be if this transparent fabrication hadn’t worked. Mehserle admitted in cross-examination that he had used his Taser to intimidate Grant and other suspects in an alleged fight—the reason the cops were called out to begin with. Moreover, as multiple videos show, there was no reason to Tase Grant in the first place, so even in the frankly unlikely event Mehserle were telling the truth, he’d still have used excessive force.

Also, of course, his Taser was on the other side of his body from his pistol: we’re talking about reaching for it with your other hand. How likely was he to have made that mistake and not discovered it until Grant was dead or dying? If you answered “about as likely as Sarah Palin’s being Rachel Maddow’s next guest host,” you win. Mehserle never claimed at the scene that the shooting was an accident. He tried out the line that he thought Grant was reaching for a gun, but 1). he knew better, and 2). he didn’t follow procedures if he thought that was true. He showed no signs of contrition until he cried under cross-examination. There are more holes in his testimony than in the Detroit Lions’ defense.

And yet… he was all but acquitted. I wish I could figure out why. Unwillingness to believe that a cop would behave the way Mehserle obviously did behave? Fear? If so, of what? Racial animus? Really? All I know is that these people apparently have a lot to answer for. I don’t hold them responsible for the rioting after the verdict was announced (most of the protests were peaceful, but some weren’t). As usual, there are conflicting claims about who—protesters or police—instigated the violence. I do hold that jury culpable, however, for the next case like this one. They had a chance to at least send a message to the next Johannes Mehserle and indeed to the next Tony Pirone. They missed that train.

LeBron James
Last, and most definitely least, of these stories is the fact that LeBron James will be “taking [his] talents to South Beach” for the foreseeable future, i.e., he’s leaving the Cleveland Cavaliers to join the Miami Heat. When he first entered the NBA straight out of a northeastern Ohio high school, James looked to be just what Cleveland needed to give the city its first championship in any major sport in 40+ years. It was a “local kid makes good” story. James was a little brash, but he seemed willing to play for the good of the team, and the fact that he comported himself off the court like the stereotype of a teen-aged multi-millionaire was mitigated if not excused by the fact that many lesser athletes behaved far worse.

But all that changed. James became a two-time league MVP, a “superstar” with all the gazillion endorsement deals that entailed. And somewhere along the way he started believing his own hype. He yammered about how he had “spoiled” Cleveland with the quality of his play. Really? How many championships did you deliver, LBJ? Clevelanders would trade all the MVP awards in creation for a single championship. The fact that you wouldn’t doesn’t change this fact.

And, while he is unquestionably an outstanding athlete, he just flat gets outplayed (or matched by those of considerably lesser talent) when it matters most. My favorite basketball statistic is what has come to be called the “Larry Bird formula” because Bird contributed in such a wide variety of ways: it is an attempt to view, in a single number, a player’s contributions to his team’s success. There are several variations on this theme. Here’s mine: Add points, rebounds, assists, blocked shots, and steals. Subtract turnovers, fouls, and missed shots of any kind (you’re not helping your team if it takes you 25 shots to get your 20 points). Take that number and divide it by minutes played. Multiply by 1000 to eliminate the decimal point. A good score, one you’d expect consistently from a star player, is 500. A really good game, the kind you’d expect not infrequently from a superstar, is 750. A put-the-team-on-his-back-and-carry-them number is 1000.

James played very well in the Cavs’ two wins against Boston in the playoffs: 837 in game 1, 1128 in game 3. But he managed only a 326 when Boston tied the series in game 4, and, in the embarrassing blowout home loss (game 5) that really decided the series, he got a 214. The other Cavs forward, Antoine Jamison, got better numbers in both those games. In games 4 and 5, the pivotal sequence in the series, James shot 31% from the field, including 0-for-9 from 3-point range, and had 10 turnovers. Real superstars play at their best when the team needs them most, and they’re consistently good or better. James? Nope. Equally importantly, what separates James from the legitimate greats is that he doesn’t really raise the level of play of his teammates. And despite his obvious physical attributes, he is only an average defender: there’s a lot more to playing D than steals and rebounds.

Why did Boston beat Cleveland this year? Well, there was excellent team play, an inspired performance by Rajon Rondo… and two days off by the Cavs’ alleged superstar. No, not off days; days off. As John Krolik writes, “LeBron James was supposed to be the next golden boy of the NBA. He will never be that player, and that would have been true regardless of what team LeBron decided to go to. LeBron James, Golden Boy died the moment LeBron lost to the Celtics in this year's playoffs. The decision LeBron made on Thursday night was nothing more than LeBron's acknowledgement of that reality.”

Will the Cavs miss him? Of course. He’s a very good player, capable of great things, and the team was built around him, so both offensive and defensive strategies (and perhaps some other personnel) will have to be adjusted. But the prediction of a friend that they’ll go 7-75 next year is wildly exaggerated. And while the Heat will have three first-line players—James, Chris Bosh and Dwyane Wade—they’ll have contracts (and egos) to match. Of the three, only Wade has ever spent any time not being the undisputed star of his team—back when Shaquille O’Neal’s skills were just beginning to decline. There’s one ball. And with all that money going to three players, the salary cap means that the supporting cast will be comprised almost exclusively of journeymen. I wouldn’t be at all surprised to see the Heat watching next year’s finals from their respective living rooms. I confess that I would rejoice in any final featuring neither the Heat nor the Lakers.

One last thing on this topic. There is something more than a little disturbing about all the grand-standing: “the King” (who’s never had a crown) “holding court” as teams came begging hat in hand, the hour-long special on ESPN—how self-important can you get? (On the other hand, what does it say for the integrity of ESPN that they’d go along with this farce?) LBJ’s childishness, however, was surpassed by the petulance of Cavs owner Dan Gilbert, who wasted no time posting on the Cavs’ official website an open letter trashing the guy he had just been fawning over, describing a “narcissistic, self-promotional build-up,” a “cowardly betrayal,” a “shameful display of selfishness and betrayal,” a “heartless and callous action.” He followed up his missive with an interview with the AP, claiming that James “quit” in the Boston series. The fact that he’s right doesn’t change the fact that it’s a rather unseemly display. (The promise to bring a championship to Cleveland before Miami gets one is at least intriguing.) Ultimately, it’s all about one rich guy getting miffed at another rich guy.

We get it, boys. You’re both multi-millionaires, and you think that all you need to do is stamp your feet and you’ll get what you want. You think your shit don’t stink. You’re wrong, as usual. Please, both of you, STFU.

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About Me

I have two blogs: Curmudgeon Central and Rumpytato.
The former is political (broadly construed), and is intended for cynics and other romantics. Feel free to disagree, even ardently, just don't resort to abuse of me or of other commenters.
The other blog, Rumpytato, is also for longer contemplations than fit easily in a Facebook status update, but posts are more personal and less specifically political in nature.
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